The wait is over for trucking, as the U.S. Supreme Court handed industry stakeholders a big victory on Jan. 13 that had been sought for weeks by blocking enforcement of the Biden administration’s vaccine-or-test mandate for larger companies nationwide with 100 or more employees.
Many observers had predicted this outcome from a court that now leans heavily conservative, by a 6-3 margin. Most of the conservative justices sounded skeptical during oral arguments on Jan. 7 about the scope of authority vested in the Occupational Health and Safety Administration, the federal agency that, on Nov. 5, issued the mandate, or “emergency temporary standard” (ETS). The OSHA rules were expected to affect 84 million employees nationwide. (The justices in a companion ruling on Jan. 13 upheld more narrowly focused vaccine mandates for health-care workers only.)
The conservatives on the court spoke directly to that skepticism of OSHA’s authority in their Jan. 13 ruling: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This ‘lack of historical precedent,’ coupled with the breadth of authority that [Labor Secretary Marty Walsh] now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.”
The conservatives also wrote: “That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”
In a concurrence, which Justices Clarence Thomas and Samuel Alito joined, conservative Justice Neil Gorsuch added: “The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the states and Congress, not OSHA.”
The three progressives on the court—Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—predictably dissented, leading with a reminder that “COVID-19 poses grave dangers to the citizens of this country—and particularly, its workers. So, the administrative agency charged with ensuring health and safety in workplaces did what Congress commanded it to: It took action to address COVID–19’s continuing threat in those spaces.”
“In our view, the court’s order seriously misapplies the applicable legal standards. And in so doing, it stymies the federal government’s ability to counter the unparalleled threat that COVID-19 poses to our nation’s workers. Acting outside of its competence and without legal basis, the court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies.”
Chris Spear, president and CEO of American Trucking Associations (ATA), which fought the vaccine-or-test mandate from the time it was issued in November and joined a wide array of petitioners in various courts to fight it, sounded jubilant in an email to ATA members after the court posted the ruling on its website.
“Just a few minutes ago, the U.S. Supreme Court issued a stay of the Biden Administration’s vaccine-or-test mandate for employers. Today, ATA has won a tremendous victory on behalf of the trucking industry and workers and employers everywhere,” Spear said. “Today’s ruling by the Supreme Court validates our claim that OSHA far overstepped its authority in issuing an emergency temporary standard that would interfere with individuals’ private health-care decisions.”
ATA had joined numerous groups, including its member state trucking associations and other stakeholders such as several conservative state attorneys general and religious organizations, in opposing the OSHA ETS all the way up the Supreme Court.
The OSHA mandate in fact had wound its way through various appeals courts—some that blocked, or “stayed,” enforcement of it (the conservative Louisiana-based 5th U.S. Circuit Court of Appeals, forcefully, on Nov. 12) and others that let the vaccine-or-test rules go forward (the more moderate 6th U.S. Circuit on Dec. 17 by a narrow 2-1 margin) before it ended up at the High Court.
Dilemma at the border
Meanwhile, enforcement of vaccine requirements for drivers crossing the U.S.-Canada border is only made more confusing by today’s Supreme Court ruling, but one expert said the disruption would only be temporary.
In a slight reversal Jan. 13, the Canada Border Services Agency did decide that unvaccinated or partially vaccinated Canadian truck drivers are exempt from that country’s own vaccine mandate for essential cross-border travel into the U.S. The administration of Canadian Prime Minister Justin Trudeau had been requiring Canadian drivers arriving at the border to follow pre-arrival, arrival, and post-arrival testing and quarantine requirements.
U.S.-based truck drivers will still need to be vaccinated or they will be turned back at the Canadian border starting in two days, on Jan. 15, according to the Truckload Carriers Association (TCA) in advice it emailed to members today. A corresponding Biden administration vaccination mandate on foreign drivers entering the U.S. is still expected to go into effect on Jan. 22, and Canadian drivers that cross the border will be included in that mandate, according to TCA.
TCA later applauded the decision by the U.S. Supreme Court to halt enforcement of the OSHA mandate on U.S. workers and larger companies. David Heller, TCA’s VP of government affairs, said: “We applaud the court for moving quickly on this ruling as the deadline for compliance with the ETS was expected to go into effect earlier this week. It is imperative that the professional truck driver has the ability to safely, efficiently, and effectively deliver our nation’s freight so that our economy and this nation can continue to thrive.”
In FTR’s State of Freight webinar on Jan. 13, Avery Vise, FTR’s VP of trucking, spoke before the Supreme Court ruling came out about the cross-border implications of a ruling favorable to U.S. trucking.
“Canada’s mandate is a different matter. It is going to take effect on Saturday and will require proof of vaccination. In terms of how that impacts the overall market, it will probably just be a hiccup. We’re talking tens of thousands of drivers not hundreds of thousands or millions of drivers in this case. I think there will be an ability to source drivers who have vaccinations within a short order.”
Vise noted that the Canadian Trucking Alliance estimates that about 10% of the drivers will be taken out of the market—about 16,000 cross-border drivers—because of the Canadian vaccination mandate. “I think it will be disruptive for a few weeks, but I don’t think it’s going to fundamentally change the market environment. I think there are enough vaccinated drivers in the system when it takes effect.”